#repossessions : Acenden / Capstone Please its driving me to a break down

[maye1981]

Hi. I have been to court and the judge was in a foul mood. Said that because the arrears have increased since first order I can't afford the property. He has said the eviction will go ahead. I went to apply to a circuit judge but the fee was £135 and was told I can only appeal if the judge misconducted his self or I have new evidence. They gave me the forms and said be here on Monday morning and they will put me infront of the circuit judge.

 

Totally gutted and thinking about things that don't usually cross my mind but I have no where for my kids to go. Can I get more time and what are my chances wih circuit judge.

[maye1981]

Spoke to acenden and offered £2000 to stop eviction but they want £7000 and claiming my arrears balance is £10000

[maye1981]

Can I apply for more time

[Ell-enn]

Hi, I can't believe the judge you got this morning !! Ring Shelter straight away and see what they can do for you 0808 800 4444 and then post back here to tell us what they said.

[maye1981]

Ell I know you can't really advise but am I likely to lose

[Ell-enn]

I honestly don't know - I didn't expect you to lose this morning! Have you rung Shelter ?

[maye1981]

Yes they said other than a n244 I don't have many options left. Emergency housing telephone numbers ect. Can I see a circuit judge on these grounds

[maye1981]

What if I reduced the arears by £2000 by the end of the month would no judge look at giving me more time. Can't even get my head around being evicted on Monday. My 5 year old and 2 year old love it here

[maye1981]

Ell can you help later with the new form and I'll take it on Monday when the court opens

[Ell-enn]

Which form did the court give you - was it an N161 Appellants form?

[maye1981]

Yes

[maye1981]

Ell if the court opens at 10 and my eviction is it 10:45 will they hold off until I see circuit judge

[Ell-enn]

Yes, if you get there for the court opening with the form the court staff will inform the bailiffs not to act until they are told of the outcome of the hearing.

 

I have done an N161 for someone before but it was quite some time ago - I'll have a root around my files and see if I can find it so we know what needs to be done.

 

Do you know if there are any free legal advisors at the court (were there any on duty this morning?)

[maye1981]

Not sure I'll give them a call

[maye1981]

Just found this on net!!!

 

 

The Format of an Appeal Hearing

An appeal hearing should not generally be a re-hearing of the original application – unless the appeal court decides that justice requires this. It should be an examination of the process by which the District Judge reached their decision. This allows the Circuit Judge to decide whether the District Judge’s decision was reasonable or whether it was clearly wrong as a matter of law or fact. The appeal court should only really consider the evidence and circumstances which were put before the District Judge but has the power to take new evidence into account.

Circuit Judges often take an informal approach to appeals against mortgage repossession decisions. Some may treat the appeal as a re-hearing and overturn the District Judge's decision even if it was not “wrong”. This is an indication of the pragmatic approach taken towards mortgage repossession cases – with judges doing their utmost to keep borrowers in their homes. Some Circuit Judges may consider the substance of an appeal before deciding whether to give permission to appeal. Therefore, even if the appeal is unsuccessful, the borrower will have been given a full hearing by a senior judge.

 

It should, however, be noted that District Judges have very wide powers when hearing a mortgage repossession case. Therefore, it can be difficult to show that a judge was in fact “wrong” to reach a particular decision – even if another judge would not have made the same order.

[maye1981]

No sleep tonight!

[maye1981]

Sorry to go on but in the post today I have had a letter from work telling me I have a pay rise of about £300 pm due to me passing my class c and e driving licence. Would this count has new evidence has the court office said if I had new evidence I could re do a n244. Or do I go straight to n161.

[Ell-enn]

Yes, that will certainly help. Do you have a recent statement showing the arrears charges that have been added to your account ? If we can show that the total they are claiming as arrears has charges added in then that will also help. The judge said that the arrears had increased since the last order - if we can show that is because of the charges it would be good.

[maye1981]

Yes but the judge saw the arears and said even without the charges my arears had still gone up because they had paid a ground rent payment on my behalf. But acenden asked me if I wanted them to pay it and said they would add it to my capital but have put it onto my arrears. Acenden said a couple of months ago they would take it of my arrears but there system is running slow. They did put this in writing but I lost my copy.

 

What if I paid £2000 of before the hearing?

[Ell-enn]

Can you afford to pay £2000 ?

[maye1981]

The judge did not Evan know what a £115 pm litigation charge was for although I have £3750 of them £2800 worth of solicitors fees. With my fos complaint at final stage after capstone offered me a refund of 2 x £115 and they said it should be more. With the ground rent charge added to my capital it does not leave much in arears

[maye1981]

A family member would be able to help and I would need to pay it back but it would be ok to pay it back slowly. I really need to keep this property.

[maye1981]

Or should I go straight to circuit judge and avoid the chance of getting the same judge has Friday.

[Ell-enn]

Let me have a think about it - I'll come back to you as soon as I can.

[Lea_HTH]

You will need to provide proof that you can pay that 2k you are offering - so if you're getting the money from someone else, get them to attend court with you, and to bring along a bank statement (or better still the money) to the court - a CJ can stay the eviction - generally you appeal to a CJ over a DJ making an error in law, but a CJ can equally decide to stay an eviction - don't worry about the terminology, it's really not relevant at this stage.

 

It is likely that the bailiff's appointment will be cancelled - unless the judge hears the case in sufficient time for them to still act at 10:45am...it's unlikely, but don't bank on it, I have had hearings in court at 10:50 with bailiffs waiting for the judge's call for 11 am to evict and for the eviction to go ahead before the person was even outside the court house. I would strongly suggest that you pack up all your valuables and be ready to leave with them at 10:45 am IF the CJ does not find in your favour.

 

Is it possible to get written confirmation from your employer that you are due a 300 per month increase? This will make a substantial difference to what you are stating. (Just re-read and saw you do have a letter - that's good.)

 

Are there duty advisers available at the county court? Your best chance of staying is getting one of them to represent you.

 

Can you answer the following questions (for up to date info).

 

1. How much are the arrears?

2. How much do you and your wife have in income - include wages, Child Benefit (this is usually excluded, but your circumstances are dire so include it), working tax credits, any other benefits or income.

3. How much is the monthly instalment?

4. Is there any equity in the property? No equity will mean it is more likely to be repossessed.

5. How many years/months left to run on the mortgage?

6. Do any of the family members in the household have any disabilities?

7. Do you have medical proof of your wife's illness?

8. Do you have copies of your mortgage statements? You will need to make exact calculations with regards to the charges. These cannot be shown as 'arrears' and if the DJ missed that point, or ignored it, then he has ignored a point in law, which means you have a ground for appeal.

9. Do you have any paperwork relating to the payment of your ground rent? These are virtually always capitalised, and if not, then they should have specified that would not be the case. The paperwork is crucial. There would be no reason for them to pay those arrears only to create arrears on your mortgage instead - the idea of them paying that was to protect their own interests, not to push you into further arrears.

Edited June 11, 2011 by Lea_HTH